WHY ARE YOU TELLING ME
ALL THIS?
The problem with communication
is the illusion that it has been
accomplished.


George Bernard Shaw
SOAR Conference on Access to
Justice
Chief Justice McLachlin

Judgment writing at its simplest is an
attempt to communicate…A judgment
that does not communicate is a failed
judgment, no matter how learned or
gracefully phrased.
Justice Binnie
•
Trial courts, where the essential
findings of facts and drawing of
inferences are done, can only be held
properly to account if the reasons for
their adjudication are transparent and
accessible to the public and to the
appellate courts.
3
Why do we write reasons?




Tell the parties affected by the decision
why the decision was made
Provide public accountability: justice is
not only done, but is seen to be done
Permit effective appellate review
“Sometimes it just won’t write”
To communicate you must know
your audience


“The key to successful gardening is
thinking like a plant”
It’s the same for judging
Whom do you write for?


Many audiences?
My two important audiences



My next door neighbour
The losing party: the most important
person in the courtroom is the losing party
(Megarry)
Do you really think about your readers
when you write?
What do all your readers
want?



CLARITY
“The sovereign virtue for the judge is
clearness” (Cardozo)
Accessibility and clarity go hand in hand
Focus of my talk

The two most important principles of
clear and persuasive writing


Context before details
Point first
What are “context” and
“point”?

CONTEXT: what should I look for and
think about




What the details are about
Why the details matter
What the are the issues to be decided
POINT: where are you heading


Your finding of fact or credibility
Your conclusion on an issue
The persuasive power of
context and point first




Decision writing typically contains a lot
of details
Readers will grasp the significance of
these details only if they have a context
for them
Principle: give the context before the
details
Secondary principle: write point first
Writing clearly about
complexity

Substantive clarity


Cognitive clarity


Clarity in your head
Clarity in your readers’ heads
Cognitive clarity


Always context first
Usually, but not always, point first
The goal of cognitive clarity:
create smart readers

Make readers smart enough to grasp
what they are about to read before they
read it.
How do you make readers
smart enough?




Context: what should I look for and
think about?
A point: where are you heading?
[A logical structure: have you presented
the information so that its form meshes
with its substance?]
READERS WANT ALL THIS
THROUGHOUT YOUR WRITING, NOT
JUST AT THE BEGINNING
Cognitive science

Readers absorb and retain detailed
information better when they first know
why it matters and how it is relevant



When they have a context (or container)
for it
When they know the point of the detail
They read more efficiently


They read faster
They retain and understand more
Example: s. 11(b) of the
Charter (Crown)

To determine whether an applicant’s right to
be tried within a reasonable time has been
infringed, I must take account of four factors:
length of the delay, any waiver of the time
period, reasons for the delay and prejudice to
the accused….[CONTEXT]


On the fourth factor, prejudice, I find that the accused suffered
minimal prejudice from the delay. [POINT]
 The accused did not lead any evidence of actual prejudice.
 The accused’s liberty interests were marginally prejudiced.
He was released on bail two days after being charged. His
bail terms were not onerous, except for a curfew of 8:00 pm
to 6:30 am. He never sought to vary or do away with this
curfew.
 The accused’s actions suggest that he did not want a speedy
trial. Three times proceedings had to be adjourned because
the accused did not appear in court…[DETAILS]
I therefore conclude that the accused’s motion under s.11(b)
should be dismissed. [OVERALL POINT]
Context before details and point first


When you are about to dump a lot of
details on your readers, first give the
context and, if appropriate, the point of
the detail
The combination of context and point first
usually gives your readers the best chance
of grasping detail
But:


Context first is mandatory
Point first is discretionary
Example: from details to point
last
The Report of 17 February 2007 contained an
obvious error. Upon discovery of the error, the
Minister withdrew the Report under Rule 5(2) of the
ID Rules. The withdrawal occurred before any
hearing took place or any evidence was received. The
Federal Court of Appeal in M.C.I v. Sheremetov 2004
FCA 373 acknowledged that where no substantive
evidence has been accepted in the proceeding the
request for the withdrawal is not subject to a
consideration by the Immigration Division of the
merits of the withdrawal request. Therefore, it was
completely within the Minister’s discretion to
withdraw the Report of 17 February 2007.
Context first; point last
Did the Minister have the discretion to
withdraw the Report of 17 February 2007? The
Federal Court of Appeal has ruled that a Report may
be withdrawn from a proceeding as long as no
substantive evidence has been accepted; see M.C.I v.
Sheremetov 2004 FCA 373. In the present case the
Minister discovered an obvious error in the Report
and withdrew it under Rule 5(2) of the ID Rules
before any hearing took place or any evidence was
received. Thus, I conclude that the Minister had
discretion to withdraw the Report.
20
Context first; point first
The issue in this case is whether the
Minister had the discretion to withdraw the
Report of 17 February 2007. I conclude
that he did. The Federal Court of Appeal has
ruled that a Report may be withdrawn from a
proceeding as long as no substantive evidence
has been accepted; see M.C.I v. Sheremetov
2004 FCA 373. In the present case the Minister
discovered an obvious error in the Report and
withdrew it under Rule 5(2) of the ID Rules
before any hearing took place or any evidence
was received.
21
The message: context first,
details later



Your readers are always asking you:
“Why are you telling me all this?”
We don’t read passively
You are always introducing


Always create contexts or containers
Don’t write like Michael Connelly
Many lawyers (and judges)
write like this:



Details
Context (if at all)
Point or submission
To create smart readers, write
like this:




Context (or a container)
Point (usually)
Details
Point reiterated or applied
Why is it hard for lawyers to
write context first?




Legal training enforces a model of legal thinking
 What are the facts? (Details)
 What is the law? (Details)
 How does the law apply to the facts? (contexts
emerge)
Legal tradition makes legal thinking the basis for legal
writing—from details to contexts
 Assumption: legal writers are writing mainly for legal
readers, who already have contexts embedded in their
minds from legal training
The problem: outside readers always need contexts first
The opportunity: even legal readers understand more
readily with contexts first
25
Applications of context first
and point first





Introduction or overview
Facts or evidence
Argument
Headings and sub-headings
Quotes
Templates



Many tribunals have them
If yours doesn’t, develop your own
Advantages



Easy way to deal with recurring kinds of
cases: fill in the blanks
Predictability for your main audiences
Warning: be prepared to deviate

One size does not fit all
27
Write an introduction

What is this case all about?


The first page says it all
I was taught that you told people what
was going on in the first paragraph.
(Pierre Berton)
Three key ingredients



Claim: who wants what from whom
Precise or “deep” issues
A little story to put the issues in context

Simplify: save the details for later
Why in an introduction
important for your readers?



Readers need help to grasp complex
information
They need that help before the
information begins to flow
A good introduction creates smart
readers

Context for the detail in the rest of your
decision
OHRC
Betty Parker worked for Ottawa Systems Consultants
from 2007 until she was let go in 2013. From 2011
until 2012 she was required to take disability leave
because she was diagnosed with a bipolar disorder.
She claims that in ending her employment the
company discriminated against her because of her
disability. She has filed a complaint under the Ontario
Human Rights Code.
Ottawa Systems Consultants asks to dismiss this
complaint. The company acknowledges that it
released Ms. Parker because of her disability, but
contends that she was incapable of performing her
job, and that it could not meet its duty to
accommodate her disability without incurring undue
hardship. Accordingly, Ottawa Drugs contends that it
has not engaged in discrimination under the Code.
The question I must resolve is whether Ottawa
Systems Consultants has met its onus to show that,
because of health and safety requirements,
accommodating Ms. Parker’s disability would cause it
undue hardship.
Identify the deep issue


The deep issue: a useful term coined by
Bryan Garner
With what level of detail or precision
are you going to state the issue you
must resolve?
The definition of a deep issue


The ultimate, concrete question that
you need to answer to decide a point
The final question you pose when you
can no longer usefully ask: “And what
does that turn on?”
34
A simple example: criminal
case


A charge of sexual assault where the
complainant and the accused agree that they
had sexual intercourse
The ultimate question: Is the accused guilty
of sexual assault?


Has the Crown proved beyond a reasonable
doubt that the complainant did not consent to
the sex?


And what does that turn on?
The deep issue
Useful technique: exclude what is not in issue
Another example: a claim of
discrimination

The issue is whether, in terminating
Betty Parker’s employment because of
her disability, Ottawa Systems
Consultants discriminated against her.

“And what does that turn on”?
36

Ottawa Systems Consultants terminated
Betty Parker’s employment because of
her disability. It claimed that she was
incapable of performing her job. The
issue is whether the company was
justified in releasing her because it
could not accommodate her disability
without incurring undue hardship.

“And what does that turn on”?
37

The issue is whether Ottawa Systems
Consultants can show that
accommodating Betty Parker’s disability
would impose undue hardship because
of safety and cost requirements.


The deep issue
The word “because” can often help you
define the issue more precisely
A good introduction will make
you a better writer


Helps you focus on the questions you
must decide
Helps you structure the rest of your
decision, using the issues
Use plain and simple language



Engage your readers; don’t turn them away
The readers’ question: will you speak my
language or will I have to endure yours?
Postpone the technical detail
Example: Before

This is an appeal against a reassessment
made by the Minister of National Revenue on
September 12, 2010 , whereby the appellant
was denied a deduction in the amount of
$1250 as moving expenses in computing her
income for the 2009 taxation year, pursuant
to section 62 and the definition of “eligible
relocation” in subsection 248(1) of the
Income Tax Act.

The relevant provisions of the Act provide...
Example: After


The appellant Alexis Smith lives in Sudbury
with her husband and two sons. In 2009 she
took a three month position with the CIBC in
Vancouver. Her family stayed behind in their
home in Sudbury.
For the 2009 taxation year, Ms. Smith claims
a deduction for moving expenses for the cost
of her airfare to Vancouver, $1250. The
Minister reassessed her income and denied
the deduction. Ms. Smith appeals.


Ms. Smith is entitled to deduct her travel
costs under s. 62 of the Act only if she was
moving from an old residence to a new
residence to enable her to take the job with
the Bank.
The issue on this appeal is whether the air
fare expense related to a change in residence
or was simply an incidental cost of travelling
to a temporary workplace.
Facts and evidence

Context before details is especially
important in your review of the facts or
the evidence



You are dumping a lot of detail on your
readers
Facts have no meaning without a
context for them
As you move from section to section,
topic to topic, start with context
What you have to avoid



Long, unbroken chunks of text
One thing after another
No road signs
Motion to exclude evidence: no
context
At approximately 4 p.m. On December 7, 2000, O.P.P.
Constables Charles Jones, Ronald Brown and David Green,
accompanied by Crown Attorney Frank Smith, went to
Torrance’s home located at 2156 Keele Street, Toronto. A
search of the premises was conducted resulting in the seizure
of a brown calendar book and a red notebook from Torrance’s
bedroom.
Torrance had developed as a prime suspect in a
homicide that occurred that afternoon. That fact led
the O.P.P. to his residence. At trial, Constables Jones
and Brown and Torrance’s father testified about what
happened in the Torrance residence
Jones stated that Brown was in charge, and that
upon arriving at the front door, they were greeted by
Torrance’s mother. Brown asked permission to search
the house for Torrance. She allowed them to enter
the house, but asked that they wait for the arrival of
her husband. Brown’s version of the initial contact is
similar. There is no question that the purpose of the
constables’ visit was to determine if Torrance was in
the house. Brown also told her that Torrance was a
suspect in the homicide case and that the police
wasted to search the home for Torrance. The police
officers and Mrs. Torrance waited...
Some context first


Torrance seeks an order excluding
evidence seized from a drawer in his
bedroom by O.P.P constables who
searched his parents’ home where he
lived.
At approximately 4 p.m….
Sharpen the context
Torrance seeks an order excluding evidence
seized from a drawer in his bedroom by 0.P.P.
constables who searched his parents’ home,
where he lived. Torrance claims that the search
and seizure were unreasonable contrary to
section 8 of the Charter, and that the materials
ought to be excluded under section 24(2).
Although Torrance’s father signed a
form consenting to the search, the
constables did not explain the form to
him, and said explicitly that they were
searching only for Torrance.
At approximately 4 p.m....
Context and point first
Torrance seeks an order excluding evidence
seized from a drawer in his bedroom by 0.P.P.
constables who searched his parents’ home,
where he lived. Torrance claims that the search
and seizure were unreasonable contrary to
section 8 of the Charter, and that the materials
ought to be excluded under section 24(2).
Although Torrance’s father signed a
form consenting to the search, the
constables did not explain the form to
him, and said explicitly that they were
searching only for Torrance. I have
concluded that the search was
unreasonable and that the materials
seized are inadmissible.
At approximately 4 p.m....
Legal analysis: no context;
point last


Counsel for the Landlord has referred to Benedetto v
Dineen
Counsel has also referred to Musilla v AVAN
Management, Drewlo v Custidio and Opara v Cook
[After slogging through these four cases]

These cases show that a binding tenancy agreement
is created once the Landlord accepts the Tenant’s
application, and accordingly the Tenant cannot
unilaterally cancel the agreement and recover his
deposit. [POINT LAST]
Context first; point last



Counsel for the Landlord submits that the Tenant
cannot recover his rent deposit. In support of her
submission she has referred to four cases dealing
with the circumstances in which tenants forfeit their
deposit.[CONTEXT]
I will briefly discuss each of these cases...[DETAILS]
On the facts of this case, I conclude that the Tenant
has forfeited his deposit because…[POINT ]
Context first; point first




Counsel for the Landlord submits that the Tenant
cannot recover his rent deposit. In support of her
submission she has referred to four cases.[CONTEXT]
All four cases show that a landlord’s acceptance of a
tenant’s application creates a binding agreement,
which the tenant cannot unilaterally cancel in order
to recover the rent deposit. [POINT]
I will briefly discuss each of these cases...[DETAILS]
On the facts of this case, I conclude that the Tenant
has forfeited his deposit because…[POINT APPLIED]
Write case-specific headings and
sub-headings


For the evidence as well as the analysis
Most writers


Use headings and sub-headings for their
analysis
Don’t use them for the evidence
57
Advantages of headings


Easier for your readers to follow and
digest your reasons
Readers deterred by lengthy blocks of
text




Headings break up the information
White space
Useful contexts for the details
Logical road map
Three caveats


Don’t overdo it
Don’t make them too long


20 words or less
Short, single issue decisions may not
need case-specific headings
59
Three types of headings



Context or topic
Point first
Question
Examples

Evidence: context




The police investigation of the alleged theft
What the videotape showed
The evidence of racial stereotyping
Evidence: point first


The police investigation was negligent
The evidence shows no racial profiling

Issue: question


Did the police investigation discriminate
on the ground of race?
Issue: point first

The Commission is entitled to a systemic
remedy.
Quotes

Before quoting, ask yourself two
questions:



1. Is the quote really necessary?
2. If it is, how much of it is necessary?
If you do quote, tell your readers why
they should read the quote


Context
Point of the quote
Quote or paraphrase?

Quote if:




the exact words matter
The quote is memorable
The quote is instructive
Otherwise paraphrase
Try not to dump truck the
legislation
The following are the relevant provisions
of the Municipal Act:
[…followed by a page and a half of statutory
provisions…]
Context
The relevant provisions of the Municipal
Act are in section 213(2) and (3), which
authorizes municipalities to pass by-laws
regulating and prohibiting smoking in
public places and workplaces, and sets
out the scope of their authority:
[the statutory provisions]
Quote from a case--not this:
Counsel referred me to Wigle v.Allstate where Cory J.A. said at p.
116:
It is difficult to conceive of an individual bargaining with a
general insurer, either as to the terms of a standard policy of
automobile insurance or with regard to the standard form of an
endorsement added to that policy. Can it really be said that the
average individual is capable of understanding the provisions of
such a contract himself or is likely to engage his solicitor to
review the terms, advise him of the dangers and complexities of
the contract, what is included and what excluded from the
coverage, and to then submit an amended contract to the
insurer?...
MEGO
But this:
In Wigle v.Allstate at p.116, Cory J.A.
emphasized that any ambiguity in a
standard form insurance policy should
be construed against the insurer:
It is difficult to conceive of an individual
bargaining with a general insurer...
Even better:
Equality of bargaining does not exist in
a standard form insurance policy. In
Wigle v.Allstate Cory J.A. affirmed that
any ambiguity in this kind of policy
should be construed against the insurer.
Edit your reasons



There is no such thing as good writing;
there is only good rewriting. (Brandeis)
Editing can convert mediocre reasons
into good reasons
Editing shows that you care about your
readers
Edit to sharpen the context





Refine the issues
Add context sentences
Reorganize sentences and paragraphs
Add headings
Shorten or eliminate quotes
When might you not write
point first?




If your conclusion or “point” is too complex
or multifaceted to be easily summarized
If your conclusion or “point” is controversial
If your conclusion or “point” is likely to
alienate your readers by its tone
But remember: although point first is
optional, context first is mandatory
72
How much context?


You can make choices about how much
context you give your readers
You can make choices about whether to
write point first


Conclusion in the introduction?
Don’t leave your readers in the dark.
Concluding words from two
masters of the craft

Easy reading is damn hard writing.


Nathaniel Hawthorne
What is written without effort is in
general read without pleasure.

Samuel Johnson

John Laskin